International Criminal Court Trial of Ahmad al-Faqi al-Mahdi

The Djinguereber Mosque in Timbuktu, Mali, a city known as the intellectual and spiritual center of Islam in Africa. Courtesy KaTeznik/Wikimedia.

In September 2016, the International Criminal Court (ICC) tried and convicted Ahmad al-Faqi al-Mahdi for the intentional destruction of cultural property. While other international criminal tribunals have tried crimes against cultural property in connection with other war crimes before, this is the first time the ICC has prosecuted the destruction of cultural heritage as a war crime and the first time that any international criminal tribunal has tried the destruction of cultural heritage as a crime independent of other war crimes.

In 2012, Timbuktu, Mali fell under the control of Ansar Dine, a radical Islamist separatist group with links to al-Qaeda. Timbuktu was the “intellectual and spiritual capital” of Islam in Africa and played an essential role in spreading Islam throughout Africa during the 15th and 16th centuries. Several of Timbuktu’s mosques and tombs are designated UNESCO World Heritage Sites. In June 2012, the UNESCO World Heritage Committee accepted a request by the government of Mali to place Timbuktu on the List of World Heritage in Danger.[1] The purpose of this List is to inform the international community about conditions that threaten World Heritage Sites, including armed conflict and war, natural disasters, and pollution. The decision to accept the request angered leaders of Ansar Dine, which in late June began deliberately destroying cultural heritage sites in Timbuktu. Many of the ancient monuments and sites of Timbuktu were “considered by the extremists to be idolatrous” and “contrary to Islam.”[2] Although some of the destroyed monuments and sites were rebuilt by “local stonemasons using traditional techniques” with the aid of UNESCO, much of the damage was irreparable. For example, Ansar Dine also burned tens of thousands of ancient manuscripts.

Although this was the trial of only one individual, the case is extremely significant because this is the first time the destruction of cultural property has been prosecuted by the ICC or any other international criminal tribunal as the sole basis of a war crime. Individuals have been charged with destruction of cultural property in connection with other war crimes. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) has heard “at least 16 cases in which it cited the destruction and plunder of cultural and religious sites as both crimes against humanity and war crimes.” While Ansar al Dine has committed numerous war crimes and al-Mahdi is suspected of committing other crimes personally, legal experts have said that “the case was narrowly focused to highlight how cultural and religious buildings are deliberately singled out for destruction to obliterate an enemy’s history and identity.”

Hopefully this case will set a precedent for more prosecutions by international courts against individuals perpetrating crimes against cultural heritage. Increased prosecution might serve as a deterrent against future destruction of cultural heritage. Other cases include the 2001 destruction of the Bamiyan Buddhas in Afghanistan by the Taliban, destruction of cultural property in Yemen as a result of the ongoing civil war, and the Islamic State’s destruction of cultural property throughout Syria and Iraq.

Additionally, the case is important in “recognizing that the protection of culture is major peace and security issue, inseparable from the protection of human lives.” Not only does the destruction of cultural heritage cause a loss to human history and culture, but as UNESCO states, “deliberate attacks on culture have become weapons of war in a global strategy of cultural cleansing seeking to destroy people as well as the monuments bearing their identities, institutions of knowledge and free thought.” In his opinion, Judge Pangalangan noted that the destruction of religious sites in Timbuktu was “a war activity aimed at breaking the soul of the people.” Like in Mali, religious and cultural persecution were the motives behind the intentional destruction of cultural heritage in the former Yugoslavia during the Balkan Wars 1991-1995. For example, the Mostar Bridge was specifically targeted for destruction because “it was viewed as a connection uniting the Croat and Muslim communities in town.”[3]

Despite the significance of this case, there are still many obstacles confronting the protection of cultural property in the event of armed conflict. No international criminal court has jurisdiction over Iraq, Syria, and Yemen, where much of the destruction of cultural heritage is taking place, because they have not ratified the Rome Statute of the ICC. Therefore, the ICC cannot act in those countries without a specific mandate from the United Nations Security Council. Additionally, while there are international laws concerning the protection of cultural property in the event of armed conflict, most importantly the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its First and Second Protocols, these laws are essentially unenforceable if signatory States decide not to comply. Moreover, and particularly during armed conflict, there are many instances of intentional destruction by third party actors who are not signatories to the Convention.

Nevertheless, the case is a step in the right direction towards recognizing the destruction of cultural heritage as a war crime and bringing to justice one of the individuals responsible for such crimes. The case is symbolic and, according to UNESCO, “a land mark in gaining recognition for the importance of heritage for humanity as a whole and for the communities that have preserved it over the centuries.”

Stephanie Hon is a second-year student at Columbia Law School and a staff member on the Journal of Transnational Law. She graduated with a B.A. in international relations and archaeology from Tufts University, where she wrote her thesis on the protection of cultural property in the event of armed conflict with a case study of Syria.

[1] Federico Lenzerini, The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage, 60, 40-64 (Francesco Francioni & James Gordley eds., Oxford University Press, 2013).